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REPORT 


ON 


MEMORIALS 


OF THE 


SENECA INDIANS AND OTHERS. 



REP OET 



MEMOKIALS 



SENECA INDIANS AND OTHERS, 



ACCEPTED NOVEMBER 21, 1840, 



COUNCIL OF MASSACHUSETTS. 






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b U T T O N AND VV E N T W O R T H , STATE P R I N l' E U S 

Nos. 10 and \-2 Exchange Street. 

1840. 



4 

Christians, and that there arc not less than two hunclred 
and Turly ])rofessors of religion among the Senecas and 
Tnscaroras. The " Friends," with that liberality and 
Christian spirit for wliich their society has always been 
distingnished, have had a settlement among the Senecas 
for many years, at which the Indians have been instruct- 
ed in the rudiments of learning, and in agriculture, and 
the mechanic arts. It is natural for them to feel a deep 
interest in those who have so long been under their guid- 
ance and protection. 

From a very early period Massachusetts has been, to a 
certain extent, the guardian of the Senecas ; and they 
now come to us, and entreat our intervention to save 
them from the loss of all the lands and improvements 
they possess. 

The Senecas claim to own four large and valuable 
tracts of land in the state of New York, called " Reser- 
vations," and which are as follows, viz. 
Tonewanda Reservation, near Niagara River, 

containing about 13,000 acres 

Buffalo Reservation, near the city of Buflalo, 

containing about 53,000 " 

Cattaraugus Reservation, near Cattaraugus 

Creek, containing about 22,000 " 

Alleghany Reservation, near the Alleghany 

River, containing about 31,000 " 



119,000 " 
Much of this land is said to be among the most fertile 
and valuable in the State of New York. 



At the close of the revokitionary war, the Common- 
wealth of Massachusetts claimed an interest in several 
large tracts of land lying in the State of New York. By 
articles of agreement, made at Hartford, and bearing date 
December 16th, 1TS6, the State of New York granted to 
Massachusetts, its grdntees, their heirs, and assigns the 
right of preemption to the lands described in that instru- 
ment, including the abovementioned four Reservations ; 
and Massachusetts ceded to the State of New York the 
sovereignty and jurisdiction over those lands. In this 
manner, the difference between Massachusetts and New 
York was amicably adjusted. Under that agreement Mas- 
sachusetts held the sole and exclusive right to purchase 
these lands whenever the Indians should voluntarily dis- 
pose of them. 

The 10th and 11th articles of the agreement of Dec. 
16th, 1786, are in the following words, viz. " The Com- 
monwealth of Massachusetts may grant the right of pre- 
emption of the whole, or of any part of the said lands and 
territories to any person, or persons, who, by virtue of such 
grant, shall have good right to extinguish, by purchase, the 
claims of the native Indians : Provided, however, that no 
purchase from the native Indians by any such grantee 
or grantees shall be valid unless the same shall be made 
in the presence of, and approved by, a Superintendent, to 
be appointed for such purpose by the Commonwealth of 
Massachusetts, and having no interest in such purchase, 
and unless such purchase shall be confirmed by the Com- 
monwealth of Massachusetts." '^ Section 11th — That 
the grantees of the said lands and territories under the 



6 

OomMon wealth of Massachusetts, shall, within six 
months after the confirmation of their respective grants, 
cause such grants or the confirmation thereof, or copies 
of such grants or confirmations, certified or exemplified 
under the seal of the Commonwealth of Massachusetts, 
to he deposited in the said office of the Secretary of the 
state of New York, to the end that the same may be re- 
corded there ; — and, after the same shall have been so re- 
corded, the grantees shall be entitled to receive again from 
the said Secretary their respective grants, or confirmations, 
or the copies thereof, whichsoever may have been so de- 
posited, without any charges or fees of office whatsoever : 

and every grant, or confirmation which shall not, or 

of which shall not be so deposited, shall be adjudged void." 

Since this agreement of December 16, 17S6, and sub- 
ject to this right of preemption, the United States have 
acknowledged and guarantied to the New York Indians, 
the title and enjoyment of these lands. 

By an agreement bearing date March 12, 1791, this 
Commonwealth contracted to sell its said right of pre- 
emption to said Ogden, his heirs and assigns ; — and, by 
sundry deeds bearing date May 11, 1791, the said Ogden 
assigned his interest in that agreement, to Robert Morris. 

On the same 11th May, 1791, this Commonwealth 
conveyed to said Morris, the said right of preemption, 
and all other its right, title, and interest in, and to said 
lands, — to hold to him, his heirs, and assigns. Copies of 
the abovementioned instruments are in the 10th volume 
of the Records of Massachusetts, and some of the orig- 
inal instruments are on its files. 



A Resolve of this Commonwealth, approved January 
26, 1S28, sets forth part of the said agreement of 16th 
December, 1786 ; recites that Robert Morris, Thomas 
Ludlow Ogden, and Benjamin W. Rogers, are the pur- 
chasers of certain tracts of land included in said territo- 
ries, and are entitled to have the purchase confirmed on 
the part of this Commonwealth ; and authorizes his -Ex- 
cellency, with the advice and consent of the Council, to 
confirm the said purchase, if the same shall appear to 
have been made in conformity to said articles of agree- 
ment ; and also to confirm in like manner, for and in be- 
half of this Commonwealth, all other purchases, which 
have been made, or which may hereafter be made, in 
conformity to said articles of agreement ; and to ratify 
such confirmations in such form and manner under the 
Seal of this Commonwealth, as his Excellency may 
think proper to carry the aforesaid articles of agreement 
into full efiect. 

The sale and conveyance by Massachusetts of its said 
right of preemption, or exclusive right to purchase the 
land of the Indians, gave no title or interest in the land 
itself. Such title or interest could be acquired only by a 
sale and conveyance thereof by the Indians ; and the 
10th article of the agreement of 16th December, 1786, 
was intended to guard them effectually against fraud and 
imposition. 

Sales have been repeatedly made and 'approved in the 
manner above suggested. From time to time, Massachu- 
setts has appointed agents to be present at meetings held 
'by the Indians for the purpose of making sale of their 



8 

lands to those having the right of preemption. On the 
Htli December, 1837, the Governor and Conncil appoint- 
ed Josiah Trowbridge its superintendent for this pur- 
pose. 

On 2d March, 1838, Thomas Ludlow Ogden, and Jo- 
seph Fellows, both of the State of New York, repre- 
sented to the Governor and Council of Massachusetts, 
that they, being grantees under the Commonwealth of 
Blassachusetts, hold for themselves, and their associates, 
certain lands in the State of New York, being part of 
the territory whereof the right of soil and property was 
ceded and confirmed to Massachusetts by the agreement 
of December IG, 17SG, the said lands being also part of 
the portion of said territory, granted by said Common- 
wealth to Robert Morris, A. D. 1791 ; that the whole of 
this territory was then subject to the possessory right of 
the native Indian occupants ; that various treaties have 
been since made with them, by which their right to it 
has been extinguished, except as to certain tracts reserved 
for their own occupation, and for the purchase of which 
a treaty was lately held at Euifalo Creek, under the 
authority of the United States, and in the presence of 
Josiah Trowbridge, Esq., the superintendent appointed 
for the purpose by the Commonwealth of Massachusetts, 
The memorialists proceed to say, that, at this treaty, they 
purchased of the Seneca Tribe, for $202,000, all their 
right and claim of and in the following tracts of land, 
being that so reserved and occupied by said tribe ; and 
which by indenture, under the hands and seals of the 
principal chiefs and headmen, dated January Lo, 1838, 



9 

they for the said consideration, sold, released, and con- 
firmed to said memorialists, viz. 
Buffalo Creek Reservation, in the County of 

Erie, containing 49,920 acres 

The Cattaraugus Reservation, in the Coun- 
ties of Erie, Chatauque, and Cattaraugus, 

containing 21,680 " 

The Alleghany Reservation, in the County 

of Cattaraugus, containing 30,469 " 

The Tonev/anda Reservation, in the Coun- 
ties of Erie and Genesee, containing . . 12,800 " 



114,869 " 
being, in the whole, 4,131 acres less than the Senecas 
represent the contents in their memorials. These are the 
same four Reservations before mentioned in this Report. 
Messrs. Ogden and Fellows proceed in their memorial to 
state, that, at the same treaty at Buffalo Creek, they pur- 
chased of the Tuscarora tribe, the Tuscarora Reservation 
in Niagara County, containing 1,920 acres ; — that they 
paid for it $9,600, and were also to pay the value of im- 
provements thereon, to be ascertained by appraisement. 
Messrs. Ogder|[ and Fellows refer to the conveyances 
made to them by the Senecas and Tuscaroras respective- 
ly, approved by Mr. Trowbridge our agent, and by the 
Commissioner of the United States, appointed to hold 
the treaty ; — and pray that the said purchases may be 
confirmed, ratified, and exemplified under the seal of the 
Commonwealth, to be recorded as provided in the orig- 
inal contracts. 
2 



10 

The Committee of the Council of Massachusetts, to 
whom tlic said memorial of Messrs. Ogdeu and Fellows 
was submitted, by their report of 9tli March, 1838, 
state, that the purchases, mentioned in said memorial, 
were made in ])rcsence ol', and approved by Mr. Trow- 
bridge, the Superintendent appointed by Massachusetts, 
and recommended that the Council consent and advise to 
the confirmation of said purchases by his Excellency 
the Governor. 

This report was accepted, and, in pursuance of it, the 
Governor gave his certificate approving of said purchases, 
bearing date, March 12, 1838, and recorded in the oflice 
of the Secretary of State of New York, September 11, 
1838. 

The deed of conveyance of the Seneca Reservations 
bears date January 15, 1838. It commences with a re- 
cital, that, at a treaty held under the authority of the 
United States, at Buffalo Creek in the County of Erie 
and State of New York, between the chiefs and headmen 
of the Seneca nation of Indians, duly assembled in coun- 
cil, and representing and acting for the said nation, on 
the one part, and Messrs. Ogden and Fellows on the oth- 
er part, concerning the purchase of the right and claim 
of the said nation of Indians, in and to the lands within 
the State of New York remaining in their possession, 
Ransom R. Gillet, Esq., the Commissioner appointed by 
the President of the United States to attend and. hold the 
said treaty, and also Josiah Trowbridge, Esq., the Super- 
intendent on behalf of Massachusetts, were severally 
present at the said treaty, and that said chiefs and head- 



11 

men,^ in behalf of said Seneca nation, agreed to sell and 
release to said Ogden and Fellows, all the right, title and 
claim of said nation, of, in, and to said lands ; it also 
avers that tliis deed of conveyance, or release, was read 
and explained to said parties, and mutually agreed to ; 
after this recital follows the deed. It purports to be an 
indenture made between the chiefs and headmen of the 
Seneca nation ^^ duly assembled in council,''^ and acting 
for and in behalf of said nation, of the first part, and 
Messrs. Ogden and Fellows, of the second part : — The in- 
denture witnesseth that the said chiefs and headmen of 
the Seneca nation of Indians, in consideration of $202,- 
000 " to them in hand paid by the said Ogden and Fel- 
lows," the receipt whereof is acknowledged, grant, bar- 
gain, sell, release and confirm to said Ogden and Fellows, 
their heirs, and assigns, the said four Reservations, giving 
the name and contents of each, as stated in said memori- 
al of Ogden and Fellows, with the qualification of " more 
or less " to each, giving no boundaries, but adding to the 
description the words, " as the said several tracts of land 
have been heretofore reserved and are held and occupied 
by the said Seneca nation of Indians, or by individuals 
thereof," — together with all and singular the rights, privi- 
leges, hereditaments, and appurtenances to each and every 
of the said tracts or parcels of land belonging or apper- 
taining — and all the estate, right, title, interest, claim, 
and demand of the said party of the first part, and of 
the said Seneca nation of Indians, of, in, and to the 
same, and to each and every part and parcel thereof ; to 
hold the said premises to said Ogden and Fellows, their 



12 

lioirs and assigjij?, but as joint tenants, and not as tenants 
in common. 'J'liis conveyance, at its close, purports to 
be an instrument of four parts, viz. — one to be kept by 
the United States, one by the State of Massachusetts, one 
by the Seneca nation, and one by Messrs. Ogden and 
Fellows, The part held by Massachusetts, is not exe- 
cuted by Messrs. Ogden and Fellows, or either of them. 
It purports to be signed, sealed, and executed, hY forty - 
Jive warriors and headmen, of whom nine subscribe their 
full names, thirty-four make their marks, and two have 
their marks made by others, as their agents. 

This deed of conveyance bears even date with the 
treaty of Buffalo Creek, made between the United States 
and the Senecas, &c, viz. January 15, 1838, The deed 
and treaty are so intimately connected, that we must 
now state some of the contents, and a part of the history 
of the treaty. By the deed it would appear merely that 
the Seneca nation sold and conveyed their lands, and re- 
ceived $202,000 for them. But much more appears by 
the treaty. In that, the nations of New York Indians 
release all their interest in certain land at Green Bay, se- 
cured to or for them, by the Menominee treaty of 1832, 
excepting one tract thereof, occupied by certain New 
York Indians, This, (to say the least,) was immaterial 
so far as the Senecas were concerned, as they never ac- 
cepted the lands at Green Bay. 

By this treaty of Buffalo Creek, (January 15, 1838,) 
the United States set apart for the New York Indians a 
tract of country, situate directly west of the State of 
Missouri, as a permanent home for said Indians, The 



13 



treaty contains general provisions for all the New York 
Indians, and special articles applicable to the several 
tribes. The 15th Section applies to the Senecas. That 
article states that Ogden and Fellows, the assignees of 
the State of Massachusetts, have purchased of the Sene- 
ca nation their interest in certain lands, " by a deed of 
conveyance, a duplicate of which is hereto annexed,^'' and 
provides that the consideration for that purchase, viz. the 
$202,000 shall be paid to the United States; that 
$100,000 of it shall be invested in safe stocks for their 
use, " the income of which is to be paid to them at their 
new homes annually," and that the balance, (,f 102,000) 
should be paid to the owners of improvements on the 
Seneca lands sold to Ogden and Fellows, according to an 
appraisement to be made of those improvements ; the 
owners of those improvements to receive their proportions 
of said appraisement, " on their severally relinquishing 
their respective possessions to Ogden and Fellows." 

But this treaty (with which the conveyance to Ogden 
and Fellows was thus incorporated,) secured to the Sene- 
cas other and valuable considerations for the sale of their 
land and for their emigration, many of which considerations 
were afterwards annulled or commuted for others, by the 
Senate of the United States, as will hereinafter be shown. 

This treaty of 15th January, 1838, purports to be 
signed on the part of the Senecas, by the same persons 
who signed the said deed of conveyance, in the same 
manner, and in the same order. 

A supplementary article to this treaty of 15th January, 
1838, was made with the St. Regis Indians, 13th Febru- 



14 

ary, 183S, which relates to those Indians only, but which 
is one of the subjects mentioned in the Resolution of 
the Senate of the United States, to be referred to in a 
subsequent part of this report. 

Tiie treaty of 15th January, 1S3S, (in the form in 
which it was submitted by the President to the Sen- 
ate.) has never been approved or ratified on the part 
of the United States. By that treaty sundry provisions 
were made in favor of the Indians, which were annulled, 
or commuted for others by the Senate of the United 
States, (as we have before stated,) when the treaty 
was under their consideration in June, 1838, viz. — 1st, 
the provision that the United States should give to the 
New York Indians a part of the Cherokee territory, (if 
the United States should acquire it,) in exchange for part 
of the land assigned to the New York Indians west of 
the state of Missouri ; — 2d, the provision that the United 
States should remove the New York Indians to their new 
homes ; — 3d, tlie provision that the United States should 
erect for the use of the respective tribes of New York 
Indians, at their new homes. Council-houses, Churches, 
School-houses, pay suitable teachers, &-c. &.c. ; — 4th, the 
provision that the United States, " taking a deep interest 
in the improvement of the Indians in useful knowledge," 
would set apart a permanent fund of $30,000, the in- 
come of which should be applied to maintain a Literary 
Institution among the Indians ; — 5th, the provision that 
the United States would indemnify the New York In- 
dians against the depredations of other Indians, at their 
" new homes " ; — 6th, the provision that the United 



15 

States should have one of its agents to reside among the 
New York Indians at the west. All these provisions foi 
the Indians, contained in the treaty, were annulled by the 
Senate of the United States. 

The Senate (two thirds of the Senators present con- 
curring) having thus altered and amended the treaty of 
15th January, 1838, introduced into it the following as 
the 15th article, viz. " the United States hereby agree 
that they will appropriate the sum of $400,000, to be ap- 
plied from time to time, under the direction of the Presi- 
dent of the United States, in such proportions as may be 
most for the interest of said Indians, parties to said trea- 
ty, for the following purposes, to wit : — to aid them in 
removing to their new homes, and supporting themselves 
the first year after their removal ; to encourage and assist 
them in education, and being taught to cultivate their 
lands ; in erecting mills, and other necessary houses ; in 
purchasing domestic animals, and farming utensils, and 
acquiring a knowledge of mechanic arts." 

The Senate further resolved, (two thirds of the Sena- 
tors present concurring,) " that the Senate advise and con- 
sent to the ratification of the supplemental article to the 
treaty, (concluded at Buffalo Creek in the State of New 
York, January 15, 1838,) which was made at the Coun- 
cil-house of St. Regis, on the 13th day of February, 1838, 
provided the chiefs and headmen of the St. Regis Indians, — 
residing in New York, ivill, in general Council, accept 
of, and adopt the aforesaid treaty, — as modified by the pre- 
ceding resolution of ratification. Provided always, and 
be it further resolved, that the treaty shall have no force 



16 



or effect whatever, as it relates to any of said tribes, na- 
tions, or bands of New York Indians, nor shall it be un- 
derstood that the Senate have assented to any of the 
contracts connected with it, until the same, with the 
amendments herein proposed, is submitted and fully and 
fairly explained, by a Conmiissioner of the United States, 
to each of said tribes, or bands, separately assembled in 
Council, and they have given their free and voluntary 
assent thereto. And if one or more of said tribes or 
bands, when consulted as aforesaid, shall freely assent to 
said treaty as amended, and to their contract connected 
therewith, it shall be binding and obligatory upon those 
so assenting, although other or others of said bands or 
tribes may not give their assent, and thereby cease to be 
parties thereto. Provided further, if any portion or part 
of said Indians do not emigrate, the President shall re- 
tain a proper proportion of said sum of $400,000, and 
shall also deduct from the quantity of land allowed west 
of the Mississippi, such number of acres, as will leave to 
each emigrant 320 acres only." 

The fact that the United States did not ratify the trea- 
ty of IStli January, 1838, but materially altered it, and 
the views of the Senate as expressed in the last cited 
resolution, show that the Senate held any assent given 
by the Senecas to that treaty, to be wholly void, — and 
the deed of conveyance (or contract) connected there- 
with, to be also void, — unless that deed, and tlic treaty as 
amended, should be afterwards freely assented to by the 
Senecas. The same resolution shows that that assent 
was not to be asked until after a full and fair explanation 



17 

of the amendments &c., to the several tribes assembled in 
Council. And the expressions used in the resolution in 
regard to the St. Regis Indians, as well as the other 
tribes, show that the Senate intended the assent of the 
Indians should be given in Council, and not out of 
Council. 

The United States Commissioner, (Mr. Gillet,) submit- 
ted the amended treaty to the New York Indians, all of 
whom, excepting the Senecas, assented to it. In Au- 
gust, 1838, he submitted it to the Senecas assembled in 
Council. Gen. H. A. S. Dearborn was present, as the 
agent of Massachusetts. To induce the chiefs and head- 
men to sign the amended treaty, Mr. Gillet assured them 
that the United States officer presiding over the Indian 
Department, considered the contract for the sale of their 
lands to Ogden and Fellows complete, and that it might 
be carried into effect, whether the Senecas assented to 
the amended treaty or not. Gen. Dearborn very proper- 
ly stated in reply, that the Governor of Massachusetts 
considered that contract void, unless the treaty as amend- 
ed, received the assent of the Senecas. As a new in- 
ducement to sign the amended treaty, the Ogden Compa- 
ny, (whom Messrs. Ogden and Fellows represent,) offered 
on 28th September, 1838, life leases, free of rent, to 
those Senecas who should wish to remain on their New 
York lands, " and who should assent to the treaty to the 
lands respectively held and occupied by them as farming 
lands." One of the chiefs proposed in the Council, that 
those opposed to the treaty, should sign a protest against 
it, in presence of Messrs. Gillet and Dearborn. Mr. Gil- 



18 

let, the United States Commissioner, refused to authenti- 
cate such protest, or to keep the Council open for its 
reception. The protest was signed in presence of Gen. 
Dearborn, by 63 chiefs and headmen, of whom 48 are 
said to be admitted chiefs, — being more than half of the 
whole number of chiefs, whether we assume the whole 
number to be as stated by the friends or opponents of the 
treaty. Only 16 chiefs signed the amended treaty in 
open Council. Mr. Gillet after the adjournment of the 
Council, and at his own room and at private houses, (out 
of Council,) obtained 15 more signatures to the amended 
treaty, — making in all, 31 signatures. No more being 
disposed to sign, the Council was adjourned to November 
15, 1838. Five more signatures were sent to Washing- 
ton, but the Department rejected them. A printed copy 
of the amended treaty bearing the signatures of 35 chiefs 
and 1 17 warriors, had been received by the United States 
Commissioner ; but the Department rejected it, because 
it bears date before the assent in Council, and before the 
amended treaty had been explained in Council, pursuant 
to the resolution of the United States Senate. This is 
shown by the letter of T. H. Crawford to the Secretary 
of War, dated October 29, 1838, saying that on that day 
only 16 Seneca chiefs and headmen had assented to the 
amended treaty in Council, and 15 out of Council, — be- 
ing, in the whole, only thirty-one. 

On 30th October, 1838, Mr. Gillet, the United States 
Commissioner, was directed to return to the Senecas, and 
procure the assent of a majority of all their chiefs. He 
returned accordingly, but the Council, (adjourned to 15th 



19 

November, 1838,) was never held. Mr. Gillet obtained 
the signatures of 10 more chiefs and headmen, wherever 
he could find them out of Council, making in the whole, 
41. By Mr. Crawford's letter of 15th January, 1839, it 
appears that two other signatures were obtained afterwards, 
one of which he rejected ; and the other was made by 
attorney, after the amended treaty was returned to 
Washington. And such is all the assent that has ever 
been obtained from the - Senecas to the amended treaty, 
viz. 16 signatures in Council, and 25 or 26 out of 
Council. In a letter of 11th January, 1839, Mr. Gillet, 
(on the authority of Judge Stryker,) fixes the whole 
number of Seneca chiefs at 81, on the 29th of March, 

1838. Three of them dying afterwards, their places 
were filled (as the Senecas say, illegally,) by three per- 
sons friendly to emigration. 

The amended treaty, in this ptate, was submitted to 
the President, but he (by advice of the Secretary of 
War) submitted it to the Senate, on the 21st of January, 

1839, for their advice. Therefore it could not have been 
plain to the President or Secretary, that the amended 
treaty had received the assent of the Senecas, pursuant 
to the Senate's resolution of June, 1838. And it does 
seem that the Senate did not consider that any such 
assent had been given ; — for the Senate resolved, March 
2, 1839, " that whenever the President of the United 
States shall be satisfied that the assent of the Seneca 
tribe of Indians has been given to the amended treaty of 
June 11, 1838, with the New York Indians, according to 
the true intent and meaning of the resolution of the 



20 

Senate of 11th June, 1838, the Senate recommend that 
the President make proclamation of said treaty, and 
carry the same into effect." 

In August, 1839, the Secretary of War, with Gen, 
Dearborn, met the Senecas in Council : What progress 
was then made in obtaining the assent of the Senecas to 
the amended treaty is shown by the President's Message 
to the Senate of 14th January, 1840, again transmitting 
the amended treaty ; — in which Message he says, " no 
advance towards obtaining the assent of the Senecas to 
the amended treaty, in Council, was made, — nor can a 
majority of them in Council, be now obtained." 

Still this amended treaty has been ratified on the part 
of the United States, as shown by a Resolve of the 
Senate of the United States, passed March 25, 1840, and 
by the proclamation of the President, bearing date April 
4j 1840. We are informed that this Resolve of the 
Senate was adopted by a majority of only one, and con- 
trary to the above intimation of the opinion of the 
President, and notwithstanding the report of the Com- 
mittee on Indian Affairs, that the amended treaty had not 
received the assent of the Seneca nation. 

The documents shown to us, represent the amended trea- 
ty to be signed by only 41 Senecas, — though we find the 
printed copy of it purports to be signed by 43. Of them 
9 write their names at length, — 34 make their marks, — 
and 2 make their marks by agents. The rejected signa- 
ture, and the signature given by attorney at Washington, 
account for the difference between 41 and 43. 

The memorialists and the delegations who have 



21 

appeared before the Committee, now object both to the 
treaty and to the alleged conveyance, for the following 
reasons : 

1st, — They say there are 91 lawful chiefs in the 
Seneca nation, and that the amended treaty and the deed, 
whether signed by 41 or 43, have not been assented to 
in any form by a majority of 91, viz., 46 chiefs and 
headmen. 

2d, — Of those whose names are on that treaty and 
deed, the Senecas object that 6 of them are not lawful 
chiefs, — and that at least eleven of their chiefs, were 
bribed by the agents of the Ogden Company, — that the 
contracts of bribery are in writing, and they exhibit the 
contracts, by which it appears that at least 8 chiefs, (who 
had been bribed before the date of the deed and first 
treaty,) signed the deed and amended treaty. If this be 
true, and the signatures of the bribed chiefs be rejected, 
the deed and amended treaty, would each have less than 
a majority of the chiefs, whether their whole number be 
91, or 81, or 76. In addition to these cases, other 
instances of bribery are alleged, in proof of which, the 
affidavits of the persons bribed are exhibited. On this 
point, the Senecas also urge the declaration of the Presi- 
dent of the United States, who said in his communi- 
cation to the Senate, dated January 13, 1840, — " That 
improper means have been employed to obtain the assent 
of the Seneca chiefs, there is every reason to believe ; 
and I have not been able to satisfy myself, that I can, 
consistently with the resolution of the Senate of the 2d 
March, 1839, cause the treaty to be carried into effect, in 
respect to the Seneca tribe." 



3d, — It is said that six others of those alleged to have 
signed, make oath that they never signed their names or 
made their marks to the amended treaty, knowing what 
they d'd at the time. 

4th, — Only 16 signatures to the amended treaty were 
obtained in open Council ; and the Senecas declare that 
no treaty with them can be valid, unless made and signed 
in open Council ; — that the resolution of the Senate 
required their assent to the amended treaty, to be given 
in open Council ; — that this intention and requisition of 
the Senate, is express as to the St. Regis Indians, and 
equally clear in regard to the Senecas ; — that only 16 
Seneca chiefs having so assented, the treaty has not 
received the assent of the Seneca nation ; — that the 
chiefs can act, (like all legislatois,) only in Legislative 
Council, — and that out of such Council, they are power- 
less. To show that tliey are correct in these opinions 
and conclusions, they refer to the letter of Mr. Crawford 
to the Secretary of War, dated 29th October, 1838, in 
which he says, " Perhaps too, it was intended by the 
Senate, that they," (the Senecas,) "should assent in 
Council." They also refer to Gov. Everett's opinion, 
viz. — " The treaty making power, is granted by the 
Constitution, in general terms. No modifications of its 
exercise in reference to Indian tribes, are recognized. As 
it would certainly be unconstitutional for the President of 
the United States to attempt to treat with individual 
members of any foreign State or Government, (not duly 
authorized to represent the entire body,) or to attempt to 
obtain the ratification of a treaty, by means of the assent 



of individuals of the Senate, not duly assembled and 
acting as such, — I remain of opinion, that the constitu- 
tionality of attempting to obtain the assent of individual 
Indian chiefs to the amended treaty, in the manner in 
question, is doubtful." The Senecas also refer to the 
message of the President to the Senate, on 13th Jaiiu- 
ary, 1840, in which he says, "the provision of the Reso- 
lution of the Senate of 11th June, 1838, requirmg the 
assent of each of said tribes to the amended treaty to be 
given in Cou7icil, and which was also made a condition 
precedent to the recommendation to me of the 2d March, 
1839, to carry the same into effect, has not been complied 
with, as it respects the Seneca tribe." They also refer 
to the same opinion as expressed by the Committee on 
Indian Affairs. And to all this they add, that both the 
treaty and deed falsely purport to have been made in 
Council. And the Senecas, and the Chairman of the 
Committee on Indian Affairs, agree in the declaration, 
that all treaties ever made with the Indian tribes, have 
been made in open Council, or by delegates duly author- 
ized. 

5th, — The Senecas contend, that the amended treaty 
has not received the requisite assent of the Senate, viz. 
two thirds of the Senators present concurring, — but was 
assented to by a majority of 07ily one. 

6th, — That the deed and first treaty constituted one 
contract, and that the first treaty being nugatory, the 
deed thereby became void, and must remain so until both 
the deed and amended treaty shall be confirmed and 
assented to by the Seneca nation, in a fair and legal 



24 

manner. The Senecas say the Ugden Company admit- 
ted that the deed required confirmation after the Senate 
amended the treaty, as shown by the Ogden Company's 
offer of life-leases to all those who should prefer not to 
emigrate, and " who assent to the treaty to the lands 
respectively held and occupied by them as farming 
lands." 

7th, — That the deed and amended treaty are, in fact, 
connected together, and are to be considered as one con- 
tract, — both equally needing ratification on the part of 
the Seneca nation ; — that all the considerations coming 
to the Senecas, are dependent on the treaty ; — that the 
10th article of the amended treaty expressly treats the 
deed as part of that treaty, and as being annexed 
thereto ; — that the said 10th article would not be intelli- 
gible without the deed ; — and that the $202,000 pur- 
chase money, is not to be paid to the Seneca nation, 
except as provided in that article ; — that the amended 
treaty, not having received the assent of a majority of 
their chiefs and headmen in Council, nor the constitu- 
tional assent of the Senate, is void, and that the deed as 
part of it, is also void. 

8th, — The Senecas also refer to a part of the above 
cited Resolution of the Senate, viz. — '' if one or more of 
said tribes or bands, when consulted as aforesaid," (viz. 
in General Council,) " shall freely assent to said treaty as 
amended, and to their contract connected therewith, it 
shall be binding and obligatory upon them so assenting." 
Now the Senecas say the only contract here referred to, 
is the said deed of conveyance to Ogden and Fellows ; — 



25 

that since this Resolution of the Senate, the Senecas 
have never assented to that deed or contract ; — and that 
for this reason also, the deed is void. 

9th, — The Senecas also contend, that the deed and 
treaty forming but one contract or instrument, both of 
them required the assent of Massachusetts. 

10th, — The Senecas also say, that several of those 
whose names appear on these instruments, are not chiefs, 
nor entitled to represent their nation. 

These are the principal objections urged against the 
deed and treaty, — and, as probably three fourths of the 
whole Seneca nation are opposed to emigration, and to 
the sale of their lands, these objections are pressed with 
great feeling and bitterness. 

Indeed, we have no doubt that very " improper 
means " have been used to obtain the assent of the 
Senecas, to the deed and treaty. And this opinion has 
also been expressed by the President of the United 
States, — by the Chairman of the Committee on Indian 
Affairs, — and by the Society of Friends. Neither can 
be supposed to have any interest to mislead their judg- 
ment, — and each has had every opportunity, for examin- 
ing and understanding this subject thoroughly. 

If the Governor and Council of Massachusetts, in 
1839, had known all that had occurred in this unhappy 
business, even when the deed was presented for their 
approbation, we are confident they would not have 
approved it. But they did not know then that a very 
large majority of the Seneca nation was strongly opposed 
to a sale of their lands, — nor that the signatures of 
4 



26 

several of their chiefs, had been obtained by bribery. 
Mr. Trowbridge was entrusted with the duties of 
agent of this Commonwealth ; but it does not appear that 
he ever reported to this Department, a copy of the 
treaty, — nor any information of its provisions. Had he 
done so, or had this Department known the state of feel- 
ing among the Senecas, or could they have known that 
a treaty, forming an essential part of the contract for the 
purchase and sale of the lands, had been made, but 
would not be ratified by the United States, they would 
not have approved the deed, — certainly not uncondition- 
ally. And if they had known the provisions of the 
treaty, and their essential connection with the deed, they 
never could have imagined it possible that the Ogden 
Company would insist on the sufficiency of the deed, if 
the United States Government should reject the treaty, 
or if the treaty should be found not to have received the 
assent of the Seneca nation. 

With all the information we possess at this time, 
Massachusetts would not now approve that deed. But, 
unfortunately, the question of approving the deed is not 
before us. The only question now is, what relief 
is there for the Senecas ? If a proper representation of 
the case should be made by them to the President and 
Senate of the United States, it is possible that the 
amended treaty may be annulled, or the assent of a 
majority of the chiefs and headmen of the Seneca 
nation, in open Council, may be declared requisite before 
it shall be carried into effect. 

It is also slated, that Congress has made no appropria- 



27 



tion for carrying into effect this treaty ; and it may 
well refuse to do so, if satisfied that the deed and treaty 
have been obtained by deception practised on the United 
States, on this Commonweahh, and on the Senecas. 
Whichever course may be pursued, we may expect that 
those who represent this State, the duly constituted 
Friend and Protector of the Seneca nation, will strenu- 
ously endeavor to cause justice to be done to them. 

In regard to the deed, the Ogden Company say it 
passed to them a perfect title ; the Senecas deny this, for 
the reasons given. But this only raises a legal ques- 
tion, — a question of title to the lands, which must be 
determined by a Judicial tribunal, and can not be deter- 
mined by the Executive Department of Massachusetts. 
It would be difficult for that Department to make a 
proper inquiry into the subject ; — and if it could do so, 
its decision would not bind the Senecas, or the Ogden 
Company. If the Ogden Company proceed to take pos- 
session of the lands, or exercise any acts of ownership 
over them, the Senecas will have their legal remedy, and 
undoubtedly will pursue it. If the Ogden Company 
seriously think they have a legal title to the lands under 
the deed, (obtained and approved as that deed was,) they 
may institute legal proceedings to oust the Senecas. 

Considering the nature of the objections to the Ogden 
Company's title, we think the character of that Com- 
pany, and of those who conduct its affairs, as well as the 
interest of both parties, require that those objections 
should be fairly met, and judicially settled without delay. 
Until that shall be done, the Senecas will probably 



28 

remain at their old homes ; — and the Ogden Company 
may not find it easy to sell them, or any part of them, to 
any prudent purchaser. 

The Committee will give no opinion whether it is, or 
is not for the interest and happiness of the Senecas to 
abandon their lands and improvements in New York, and 
retire to the West of the Mississippi. A very large ma- 
jority of them, believe it is not for their interest and hap- 
piness to do so ; and, in a matter affecting themselves 
only, they should be permitted to decide for themselves. 

Believing that the Governor and Council of Massachu- 
setts, cannot, at this time, give any direct relief to the 
Seneca nation concerning the subjects submitted to us, 
the Committee respectfully recommend, that the further 
consideration of the same be indefinitely postponed. 

By order of the Committee, 

JOHN R. ADAN, Chairma7i. 

Council Chamber, Nov. 21, 1840. 



(KommonUJcaltij of ftlnssacijusrtts. 

November 21, 1840. 

This Report is accepted, by the Executive Council, 
and is approved by His Excellency the Governor. 

JOHN P. BIGELOW, 

Secretary of the Commonwealth. 

ERRATUM.-Pagc 6, line 21, for " said Ogden" read ■• Samuel Ogden." 



2'ivu«.^l*5^Cl 



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